KERALA HC DECLARES WOMEN WHO SEEK HELP OF SURROGATE MOTHERS ARE ELIGIBLE FOR MATERNITY LEAVE

KOCHI: The Kerala high court on Tuesday declared that women who seek the help of surrogate mothers are eligible for maternity benefits and held that they cannot be discriminated against.

Justice Dama Seshadri Naidu was considering the plea of a woman who was denied maternity leave by her employer for taking care of her newborn baby citing the reason that she was not the biological mother.

In the judgment delivered on the petition filed by P Geetha, deputy general manager at Kerala Livestock Development Board (KLDB), the court said: "This court declares that there ought not be any discrimination of a woman as far as the maternity benefits are concerned only on the ground that she had obtained the baby through surrogacy."

The court, however, held that women who opt for surrogacy cannot be granted convalescence leave that is available for biological mothers. "It is further made clear that as a matter of legal fiction, the petitioner is entitled to all the benefits an employee could have post-delivery, sans the leave involving the health of the mother after the delivery. In other words, the child-specific statutory benefits, if any, can be extended to the petitioner," the judgment stated.

Referring to Maternity Benefit Act of 1961, the court pointed out that the scheme laid out in the law not only includes one for convalescing from labor but also nursing breaks.

The court, however, said it cannot order KLDB to grant maternity leave to the petitioner as the rules applicable to KLDB — Staff Rules and Regulation-do not allow it. The court pointed out that the Assisted Reproductive Technology Bill has not become a law yet. The bench also noted that KLDB has granted an extraordinary leave of 62 days to Geetha.

Geetha opted for surrogacy as her only son died in a road accident and as she was unable to conceive again even after taking fertility drugs for close to two decades. When the delivery of the surrogate child neared, she applied for maternity leave. To her shock, the plea for leave was turned down by her department citing the reason that she is not the biological mother of the child. The surrogate mother had delivered the baby on June 18, 2014.